Jordan v Victorian WorkCover Authority
[2025] VCC 1212
•27 August 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-24-05051
| DANIELLE JORDAN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HIS HONOUR JUDGE FRAATZ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 and 14 May 2025 | |
DATE OF JUDGMENT: | 27 August 2025 | |
CASE MAY BE CITED AS: | Jordan v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1212 | |
REASONS FOR JUDGMENT
---
Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – right shoulder injury – significant pre-existing condition – causation
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act2013, s335
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; Findlay v Transport Accident Commission [2025] VSCA 126; Victorian WorkCover Authority v Hartley (2010) 27 VR 116; Ansett Australia Ltd v Taylor [2006] VSCA 171; Sednaoui v Amac Corrosion Protection Pty Ltd(2017) 52 VR 247; Transport Accident Commission v Garcia [2015] VSCA 225
Judgment: Leave granted to the plaintiff to commence a proceeding for pain and suffering and loss of earning capacity damages
---
APPEARANCES: | Counsel | Solicitors |
| For the plaintiff | Ms M Pilipasidis SC with Ms S Fernando | Just Injury Lawyers |
| For the defendant | Mr S Martin | TG Legal + Technology |
HIS HONOUR:
1The plaintiff, Danielle Jordan, dislocated her right shoulder in the course of her employment with Super Sealing Pty Ltd on 30 January 2017 (“workplace incident”). She was twenty years of age at the time.
2Prior to commencing work with Super Sealing in October 2016, Ms Jordan had a longstanding history of recurrent right shoulder dislocation. She is right hand dominant.
3The workplace incident occurred when Ms Jordan was directed by her employer to pull bollards off the rear tray of a truck for use in traffic management. The task required her to extend both shoulders above shoulder height, and reach through or above the truck tray’s railings in order to reach the bollards, which were weighted more heavily at their base. She felt her right shoulder dislocate, but it felt different from her previous dislocations, because of a sharp pain which extended down the whole of her right arm, which went limp; and the dislocated humerus sat backwards, whereas before it sat downwards.
4Ms Jordan’s shoulder was enlocated at the Austin Hospital Emergency Department later that day under sedation due to extreme pain, and she underwent surgery in March 2017. Although she returned to light modified duties in her traffic management role in late 2017, the right shoulder has since required multiple further operations, culminating in arthrodesis (fusion) in December 2022.
5Ms Jordan seeks leave pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act2013 (“the Act”) to issue proceedings for damages against her employer in respect of injury sustained in the course of her employment on 30 January 2017, both for pecuniary loss and for pain and suffering.
6She relies upon the consequences of the impairment to the function of her right shoulder, and disfigurement related to the multiple surgical procedures, under paragraphs (a) and (b) of the definition of “serious injury” respectively.
7It is conceded by the Victorian WorkCover Authority (“VWA”) that:
(a) the pain and suffering consequences of Ms Jordan’s right shoulder condition are “serious”; and
(b) as at the date of the hearing, she has no capacity for employment.
8The VWA contested the application on two issues: firstly, being causation; and secondly, whether the consequences of any permanent aggravation to her pre-existing condition in the incident were “serious”.
9In its submission:
(a) the instability of the right shoulder was longstanding in nature, and the workplace incident was just one of “many, many, many dislocations”[1] caused by the pre-existing condition. It had no relevance to her present impairment or incapacity for employment, because Ms Jordan’s current right shoulder condition, including the need for multiple surgeries, would have eventuated, whether or not she had dislocated it at work in January 2017; and
(b) upon the analysis in accordance with Petkovski v Galletti[2] of the nature and extent of her right shoulder condition before the incident, and any aggravation to that condition, there was no aggravation at all; alternatively, any aggravation was short lived, and played no significant part in her current presentation.
[1]Transcript (“T”) 13, Line/s (“L”) 25
[2][1994] 1 VR 436
10As a result of the concessions made by the VWA, if I am satisfied as to the question of causation, Ms Jordan satisfies the statutory test in terms of loss of earnings and pain and suffering.
11For the reasons set out below, I am satisfied there is a sufficient causal connection between the workplace incident and Ms Jordan’s current condition. Accordingly, I grant her application for leave to commence proceedings for damages against her employer.
Principles
12The legal principles in applications of this type are well known and not in dispute. Ms Jordan bears the onus of demonstrating her impairment and/or disfigurement is permanent, and the consequences of the workplace incident are “serious”.
13She must establish that the consequences to her with respect to pain and suffering and loss of earning capacity, when judged in comparison with other cases in the range of possible impairments or losses of a body function, or disfigurement respectively, are fairly described as being at least “very considerable” and certainly more than “significant or marked”,[3] in accordance with the narrative test set out in ss325(2)(a), (b) and (c) of the Act.
[3] Humphries and Anor v Poljak [1992] 2 VR 129 at 140
14To satisfy the requisite threshold in relation to pecuniary loss, I must also be satisfied that Ms Jordan has suffered a permanent loss of earning capacity of 40 per cent or more, as set out in ss325(2)(e), (f) and (g) of the Act.
15The question of causation is to be approached in accordance with the principles in March v E & MH Stramare Pty Ltd[4] and by applying commonsense.
[4](1991) 171 CLR 506; see also Acir v Frosster Pty Ltd [2009] VSC 454 at paragraphs [245]-[250] and Rowe v Transport Accident Commission [2017] VSCA 377
16I have also taken into account the recent observations of the Court of Appeal about the requirement to establish causation in serious injury applications:
“As was said by Gummow and Hayne JJ in Travel Compensation Fund v Tambree, ‘[i]t is now clear that there are cases in which the answer to a question of causation will differ according to the purpose for which the question is asked’. The purpose for which the question is asked in a serious injury application is to determine whether an injured plaintiff should be granted leave to commence a common law proceeding for damages.
As has been said before, a serious injury application is a ‘gateway’ proceeding, usually conducted with no oral evidence other than that of the plaintiff. The result of the application does not give rise to any liability to pay damages. Nor does it create any relevant issue estoppel. This Court has previously held that a plaintiff in a serious injury application must prove causation. However, the question, whether the evidence tendered in such a gateway application is sufficient for that purpose, needs to be considered in light of the limited purpose for which the question is being asked, and in light of the more limited scope of the evidence adduced on that issue than that which might be adduced in a full trial.”[5]
[5] Findlay v Transport Accident Commission [2025] VSCA 126 (“Findlay”), at paragraphs [60] to [61]
17Of course, in serious injury applications, the credit of the applicant is of great importance.[6]
[6]See Brooking JA in Palmer Tube Mills (Aust) Pty Ltd & Anor v Semi [1998] 4 VR 439 at 448; and more recently in Johns v Oaktech Pty Ltd [2020] VSCA 10
Background
18Ms Jordan married her long-term partner, Daniel Dowler, earlier this year, and they have a son, aged five years. Prior to meeting Daniel in 2018, Ms Jordan had her first son, who is now aged nine years.
19Her medical history includes depression (from 2011), non-epileptic seizures and back pain (2013 and 2014).
20After completing Year 10 at Lilydale High School, Ms Jordan transferred to a selective sports school, SEDA College, based on her ability at basketball. She left school at the end of Year 11.
21From in or about early 2015, she was employed fulltime at Hall 4x4 in administration and as a delivery driver, before she took some time off work to have and care for her first child.
22Ms Jordan’s right shoulder first dislocated in or about 2011. Although she strapped the shoulder for basketball, she had no issues until it dislocated again play fighting in March 2013.[7] By the time of her presentation to Eastern Health Emergency Department on 5 March 2013, there had been eleven dislocations, despite various attempts of shoulder strapping, positioning and immobilisation. The examining doctor recorded the joint was very unstable, with the slightest movement leading to dislocation, but was enlocated easily; further, that there was no altered sensation of the right arm upon dislocation.[8]
[7]See letter from Mr Roy Lenssen to Mr Ash Moaveni dated 19 August 2013; Defendant’s Court Book (“DCB”) 83
[8] DCB 75
23Throughout 2013, her shoulder was recurrently dislocating with simple movement and on one occasion required reduction under nitrous sedation. An Emergency Department note on 31 May 2013 records she “appears comfortable with obvious shoulder dislocation, not distressed, says feels similar to previous shoulder dislocations”.[9] Strong prescription pain medication was available to control her pain at home when she was unable to enlocate the shoulder herself.[10]
[9] DCB 79
[10] DCB 87 and 90
24In July 2013, her treating orthopaedic surgeon, Mr Ash Moaveni, diagnosed right shoulder multidirectional instability, but did not recommend surgery. In his view, a conservative approach including pain management and physiotherapy was preferable, with a view to increasing muscle balance and strength.[11]
[11] DCB 82
25In August 2013, sports physiotherapist, Mr Roy Lenssen, noted her glenohumeral joint was constantly subluxed, there was loss of function and deltoid and scapular muscle atrophy.[12]
[12] DCB 83
26There was only limited progress following physiotherapy provided through the Children’s Pain Management Service in 2013, due to multifactorial reasons including Ms Jordan’s mental health at the time.[13]
[13] See Discharge Summary dated 2 June 2014, DCB 93
27Ms Jordan’s right shoulder was also dislocated in a motor vehicle accident on 27 May 2014. Upon assessment by surgeon Mr Eden Raleigh, her shoulder was grossly unstable, and arthroscopic reconstruction surgery was canvassed to fix the “anterior labrum [which] has locked the joint completely”.[14]
[14] DCB 96, 97
28The report of an MRI scan conducted in June 2014 recorded some labral tearing, and the “humeral head is posteriorly subluxed” with “a displaced anterior glenoid labrum … interposed between the humeral head and the glenoid preventing full reduction”.[15]
[15] PCB 35
29In the course of her cross-examination, Ms Jordan frankly conceded that during the middle of 2014, she was:
(a) taking strong prescribed medication for pain;[16]
(b) under the care of an orthopaedic surgeon; and
(c) contemplating right shoulder surgery.[17]
[16]DCB 99
[17] T25
30In September 2014, there was a further dislocation lifting a heavy box which she could not enlocate, requiring an attendance at Maroondah Hospital Emergency Department. Nevertheless, her symptoms had improved over time, and she progressed well with taping of the shoulder under the care of physiotherapist, Rachel Ridley.[18] Mr Moaveni still did not support surgery, as it could make the condition worse.[19]
[18] Report dated 10 September 2014, DCB 102
[19] DCB 104
31I accept Ms Jordan’s evidence that during her full-time employment at Hall 4x4 in 2015, her right shoulder, “was not too bad. It was stable enough to continue work.”[20] She was usually able to enlocate the shoulder by herself when necessary.[21]
[20] T42
[21] DCB 109
32Ms Jordan had her first child in September 2015.
33In September 2016, Ms Jordan again sought advice from her treating orthopaedic surgeon, Mr Moaveni, in relation to possible surgical intervention. This followed another presentation at Eastern Health when she had been unable to enlocate the shoulder herself.[22]
[22] DCB 108
34As before, Mr Moaveni did not support this course. Noting the recent MRI of the right shoulder on 10 July 2016 – which showed joint instability and blunting of the labral tissue from chronic static subluxation, but no labral or capsular tearing – Mr Moaveni stated:
“… nothing short of fusion is likely to improve … [Ms Jordan’s] pain. However, a fusion carried significant amount of morbidity, and some would argue that the treatment would be worse than the disease.”[23]
[23]See Mr Moaveni’s report dated 14 September 2016, DCB 110; and see also report of Dr Fixler dated 11 January 2025, Plaintiff’s Further Amended Court Book (“PCB”) 72
35Although he did not consult directly with Ms Jordan, experienced orthopaedic surgeon, Mr Frank Lyons, provided a second opinion at the time. Mr Lyons confirmed Mr Moaveni’s advice that the shoulder condition as at September 2016 was “not curable by stabilisation surgery”. In Mr Lyons’ opinion, self-management was preferable, and he could “guarantee she would not be happy with a fusion”. Mr Lyons also stated:
“No amount of capsular tightening be it posterior or global will get the right balance here.
I think that once you head down that path I have only ever seen it spiral out of control culminating in arthrodesis.”[24]
[24]DCB 111
36Ms Jordan accepted Mr Moaveni’s advice, and did not proceed with the stabilisation procedure.[25]
[25] T26
37Despite her condition, the right shoulder did not hold Ms Jordan back: she simply strapped it for basketball, and otherwise led a full life. She has a history as an athlete, including at a select sports high school, and played basketball until a year or so before the workplace incident, only ceasing due to the demands of full-time work and, to use her phrase, “adulthood”.
38There is no evidence she had any significant difficulty in discharging her full-time duties at Hall 4x4 during the period from February 2015 to April 2016, looking after her first son or in other aspects of her life. She was also able to discharge her full-time duties with Super Seal, which involved a degree of manual handling, for three months before her injury in January 2017.
39I find that, as at January 2017, prior to the workplace incident:
(a) Ms Jordan suffered from multidirectional instability affecting her right shoulder, which resulted in chronic static subluxation and dislocation;
(b) she had suffered as many as fifty dislocations of her right shoulder;
(c) she considered arthroscopy surgery in 2014 following a motor vehicle accident, but surgery was excluded as a management option;
(d) she had required the assistance of medical practitioners to enlocate the right shoulder in 2014 and 2016;
(e) scans in 2016 showed blunting of the labral tissue; and
(f) Ms Jordan was again advised against surgical intervention in September 2016.
40Although she had taken prescription pain medication in 2014, Ms Jordan was not taking any regular prescription pain medication in 2015 and 2016, including when she was working for Super Seal.[26]
[26] T38, L23
41Save for an incident lifting a heavy box in August 2016, on the evidence before me, I am satisfied Ms Jordan was able to manage her right shoulder condition in the two years or so prior to the workplace incident, including caring for a young baby, performing her usual household duties and full-time employment.
42I accept her evidence that at the time she commenced employment with Super Seal, her right shoulder was manageable.[27]
[27]T42
Treatment after the workplace incident
43Following her attendance at the Austin Hospital Emergency Department on 30 January 2017, Ms Jordan was referred to orthopaedic surgeon, Mr Shane Blackmore. Mr Blackmore initially saw her as a public patient, and later privately.
44It was not until after the workplace incident, following MRI scans conducted in March 2017 which showed tears of both the anterior and posterior labrum with a potential tear of the capsule itself,[28] that Ms Jordan required surgery to treat her right shoulder instability.[29]
[28] PCB 234, 239
[29]T26-27; T41, L13-15
45On 29 March 2017, Mr Blackmore performed a right shoulder arthroscopy, posterior labral repair and antero-labral reconstruction and capsulorrhaphy.[30] The surgery notes record findings of labral fraying and tearing, requiring repair and labral reconstruction, and the right shoulder capsule requiring repair and tightening to stabilise the joint.
[30]PCB 58
46This evidence of the condition of the right shoulder in March 2017, requiring surgery, is markedly different from the previous assessment of Mr Moaveni based on the MRI scan in 2016.
47Despite the surgery on 29 March 2017, Ms Jordan’s shoulder condition required extensive further treatment including multiple episodes of surgical intervention, a summary of which follows:
(a) ongoing physiotherapy and prescription pain medication;
(b) 4 July 2017 – right shoulder hydrodilatation, including steroidal injection to treat capsulitis;
(c) 11 December 2017 – right shoulder manipulation and arthroscopic synovectomy;
(d) 18 July 2018 – right shoulder anterior labral repair;
(e) 15 March 2021 ꟷ right shoulder arthroscopy, pen anterior approach coracoid osteotomy and Latarjet coracoid transfer;
(f) 30 August 2021 ꟷ right shoulder examination under anaesthetic;
(all undertaken by Mr Blackmore);[31]
(g) 5 December 2022 ꟷ right shoulder glenohumeral fusion with allograft cancellous bone (undertaken by Professor Eugene Ek);
(h) 18 April 2023 ꟷ ultrasound-guided right acromioclavicular joint injection (undertaken by Dr Joseph Richter, upon referral from Professor Ek); and
(i) 25 September 2023 ꟷ right shoulder removal of hardware, wound washout and debridement, and right shoulder AC joint excision (undertaken by Professor Ek). It is not in dispute that the fusion surgery in 2022 was complicated by infection of the shoulder joint where plates had been inserted, which resulted in the need for this further surgery.
[31] Operation reports PCB 57-64; report dated 18 October 2019, PCB 239
Evidence as to causation
48The medical evidence as to causation is complex, and – as is usual in applications of this type – I was not assisted by any of the treating doctors or medico-legal surgeons providing oral evidence, which may have then been tested by cross-examination.
49In my view, bearing in mind the factors identified in Findlay, the evidence as to causation as a whole supports a finding Ms Jordan suffers from an ongoing compensable condition.
50Orthopaedic surgeon, Mr James Chiu, examined Ms Jordan at the request of her solicitors. His report dated 30 April 2024[32] records that before her injury, Ms Jordan was coping with symptoms of pre-existing multidirectional instability in the right shoulder after adherence to her physiotherapy exercise program and some lifestyle adjustments.
[32]PCB 103
51In Mr Chiu’s opinion:
(a) prior to the workplace incident, Ms Jordan’s prognosis appeared reasonable, because she had managed to avoid all surgery and was able to use her arm normally enough to hold down a regular job as a traffic controller;
(b) her prognosis changed markedly after the workplace incident on 30 January 2017. He noted her right arm is now essentially non-functioning. Although it no longer dislocates, there is constant pain and no power, and her range of motion is permanently restricted.
52Like others, Mr Chiu considers she has no capacity for her pre-injury employment. Mr Chiu confirmed his opinions in his up-to-date report dated 13 February 2025.
53In his report of 16 May 2024,[33] pain specialist Dr Saleem Khan states his opinion that:
(a) the workplace incident caused an injury to the right shoulder;
(b) the injury triggered the subsequent increase in the right shoulder pain and instability, and necessitated the subsequent multiple treatments and surgeries to the right shoulder;
(c) had it not been for the incident on 30 January 2017, she would have continued to manage her right shoulder symptoms with conservative physical therapy interventions.
[33]PCB 105, at PCB 118
54Dr Khan confirms his opinion in relation to causation in his further report dated 6 February 2025.[34]
[34]PCB 158, at 167
55Occupational physician, Dr Dominic Yong, also considers the workplace incident is a significant cause of the recurrence of the right shoulder dislocations and dysfunction, and that the work incident on 30 January 2017 necessitated Ms Jordan requiring surgery. In his opinion, if not for the incident, she would continue to maintain her usual level of right shoulder function with her hobbies and at work.[35] His most recent report dated 13 March 2025 confirms those opinions.[36]
[35]Report dated 15 July 2024, PCB 135
[36]PCB 186
56Mr Shane Blackmore is Ms Jordan’s treating orthopaedic surgeon. In his opinion, her injuries are consistent with the original workplace injury.[37]
[37]Report dated 18 October 2019, PCB 243
57Occupational physician, Dr Michael Lucas, raises the issue of post-surgical capsulitis being an ongoing contributor to Ms Jordan’s incapacity. Dr Lucas states the events of 31 January 2017, “may reasonably be viewed as having brought to further attention Ms Jordan’s pre-existing condition (ie. exacerbated/ aggravated)”.[38] His opinion appears to support the application.
[38]Report dated 24 March 2025, DCB 40
58Professor Ek, who performed the fusion surgery in March 2022, states that Ms Jordan’s work may have constituted further aggravation of her right shoulder instability.[39]
[39]Report dated 20 April 2025, PCB 98, L97
59Historically, the medical evidence is all one way. The reports of orthopaedic surgeon Dr John Ashwell dated 28 September 2017,[40] occupational physician Dr Michael Baynes dated 18 September 2018,[41] and orthopaedic surgeon Dr Francis Ghan dated 21 July 2022,[42] in particular, all accept that Ms Jordan’s employment was a cause of her right shoulder recurrent dislocations.
[40]PCB 248
[41]PCB 265
[42]PCB 257
60I accept the opinion of Ms Jordan’s longstanding general practitioner, Dr Alexander Fixler, as at 27 July 2019, of a persisting aggravation of her major pre-existing right shoulder problems in the workplace incident, which gave rise to the need for surgery.[43]
[43] Report dated 23 July 2019, PCB 238
61Dr Fixler went on to state, in his most recent report dated 11 May 2025:[44]
“I believe that despite the number of dislocations that Ms Jordan had prior to the episode at her place of employment on 30/01/2017, there is no doubt that her shoulder was materially aggravated by pulling and moving bollards off a truck when the bases got stuck.
I believe therefore that her work did contribute to an aggravation of her condition.
I do not deny that she may have required the labral repair even if she didn’t have the accident at work on 30/01/2017.
But there is evidence of a particular task that she performed that aggravated her shoulder and resulted in the labral repair.
…
[44] PCB 244
I believe that it's unlikely that any of the incidents at work have affected the natural history of this condition. That is her recurrent dislocations, her necessity for surgery and her instability would all have occurred without the incident in 2017. I understand this is in contradiction to my original claim in my original report dated 23/07/2019, but on close review of her history prior to my original report and all of the history since that report, I’m now of the belief that she sustained a temporary aggravation of her right shoulder condition due to pulling the bollards in 2017, even though I now believe that the long-term sequelae of her shoulder would have been identical even if she had not pulled the bollards.”
(emphasis added)
62In his view, the surgery to the shoulder shortly after the incident “would have further complicated the situation” as to the issue of whether the workplace incident materially contributed to the current condition of the right shoulder. As he says, “for how long the aggravation after that time it contributed is impossible to say”.[45]
[45]PCB 92
63Despite previously expressing the contrary view, it is apparent Dr Fixler now believes Ms Jordan no longer suffers from any ongoing compensable condition. His revised opinion that the injury would have “probably resolved within a short period of time”, however, is not supported by any adequate reasoning. Dr Fixler accepts the initial labral repair procedures in 2017 and 2018 were injury-related. Yet he does not explain how Ms Jordan’s pre-injury level of functioning at home, work and in her recreational pastimes – all without need for surgical intervention – fits with his vague revised opinion of only a “temporary aggravation”; or why, absent the workplace incident, surgery would have been required and, if so, when and in what circumstances.
64I do not find his reasoning based on a review of her history persuasive. I prefer the views of Ms Jordan’s treating orthopaedic surgeons, and the preponderance of specialist opinion referred to above.
65Orthopaedic surgeon Mr Ash Chehata examined Ms Jordan on a single occasion – after all of the surgeries had been conducted – on 19 February 2025. Mr Chehata diagnosed Ms Jordan’s condition as multidirectional instability of the right shoulder, resulting from a sudden trauma at the age of fifteen in March 2013, with a prognosis from that point of likely ongoing recurrent instability and episodes of instability. In his opinion, a “minor accident” performing above-shoulder activity lifting bollards was simply a reflection of the highly unstable nature of the right shoulder.[46] He also considered it “very unlikely” that the motor vehicle accident contributed in any way to the ongoing instability.
[46]Report dated 12 March 2025, DCB 22
66In Mr Chehata’s view, performing procedures such hydrodilatation, manipulation and synovectomy are “likely to cause further instability events”. He repeated this opinion in the context of prognosis, noting that there are significant poor outcomes in this demographic with surgical intervention; and further, that an infected fusion on the background of severe chronic pain presents part of significant multifactorial components to the presentation.
67I pause here to interpolate that if reasonable medical treatment undertaken as a consequence of the workplace incident has resulted in exacerbation of the injury, that exacerbation remains part of the compensable condition. It may well be that Mr Lyons’ and Mr Chehata’s views are correct: the initial surgical procedures have materially contributed to the ultimate condition of Ms Jordan’s right shoulder, which is productive of serious pain and suffering consequences and incapacity for employment. In the absence of any evidence of a break in the chain of causation by a novus actus interveniens, any exacerbation may be viewed not merely as a consequence of the original injury, but itself as an injury arising out of, or in the course of employment.[47]
[47] Victorian WorkCover Authority v Hartley (2010) 27 VR 116, at paragraph [36]
68Since the workplace incident, Ms Jordan has experienced constant pain on a daily basis.[48] She has been unable to work since May 2022. Previously only taken on an ‘as needs’ basis in order to control her pain, Ms Jordan presently takes the following prescription medication:
(a) Celebrex, 200 milligrams, and Lyrica, 150 milligrams twice per day;
(b) Palexia, 50 milligrams, two to four tablets per day;
(c) Endep, 10 milligrams daily;
(d) Diazepam, 5 milligrams daily; and
(e) Pantoprazole, 40 milligrams daily.
[48]T36
69She now has a painful fused right shoulder with very limited use of her right upper limb,[49] and a scar which is disfiguring.
[49] T42-43
70On the evidence available to me, but for the workplace incident, Ms Jordan may never have come to the point of requiring fusion surgery. I find that the workplace incident resulted in the need for the initial surgery in March 2017, and is a cause of the need for all of the subsequent procedures.
Admission by conduct
71Ms Jordan lodged a Worker’s Injury Claim Form on 1 February 2017,[50] which the VWA accepted on 22 March 2017.[51] On 3 April 2020, Allianz Australia Workers Compensation accepted Ms Jordan’s claim for impairment benefits in respect of her right shoulder injury and scarring, and a psychological injury.[52]
[50]PCB 202
[51]PCB 206
[52] PCB 271
72In fact, for over eight years, right up until two weeks before the trial, the VWA accepted the connection between Ms Jordan’s condition and the need for medical and like expenses.
73The WorkCover insurer approved and paid for all of the procedures and treatment set out at paragraphs [45] and [47] above.
74From time to time, the VWA sought appropriate specialist medical advice in relation to its liability for ongoing medical and like expenses. For example the evidence at trial included:
(a) Dr Ashwell’s opinion as of 28 September 2017 that Ms Jordan’s employment was still a cause of her right shoulder recurrent dislocation;[53] and
(b) Dr Ghan’s approval of the request for fusion surgery on 12 July 2022, based on a connection with employment.
[53]PCB 248, at PCB 253
75In summary, the VWA:
(a) accepted Ms Jordan’s claim for compensation;
(b) accepted liability for the right shoulder, scarring and psychological injuries for impairment benefit purposes;
(c) approved payment for the initial arthroscopic labral repair on 10 March 2017;[54]
(d) approved the request for the fusion procedure performed on 27 July 2022;[55] and
(e) paid statutory benefits including medical expenses and weekly payments from 22 March 2017 until 30 May 2025, when medical expenses were terminated.[56]
[54]PCB 293
[55]PCB 288
[56]Letter from Allianz to Ms Jordan dated 1 May 2025, DCB 8
76The apparent basis upon which the medical and like expenses were terminated was the content of reports of Mr Chehata dated 12 March 2025 and Dr Fixler dated 22 April 2025.
77Although not determinative, I find the continued acceptance of liability for medical and like expenses, including multiple major surgical procedures, over a long period of time, is a very significant admission[57] in this application relevant to the issues of whether:
(a) Ms Jordan’s pre-existing right shoulder condition was aggravated on 30 January 2017;
(b) she suffers ongoing pain and restricted range of movement of the right shoulder relevant to the claimed injury.
[57]Sednaoui v Amac Corrosion Protection Pty Ltd(2017) 52 VR 247
78By its conduct (including its agents), the VWA admitted the fact of injury, the need for surgery to treat the injury to the right shoulder, and the ongoing compensable nature of Ms Jordan’s condition, each of which go to the critical issue of causation.
79Such an admission is rebuttable;[58] however, the VWA has not put before the Court any evidence to explain why its conduct over time should not be regarded as an admission of ongoing compensable injury.[59]
[58]See Ansett Australia Ltd v Taylor [2006] VSCA 171
[59] T65-66
80At the end of the day it is only one factor, and I must consider all of the evidence.
Is the workplace incident a cause of Ms Jordan’s current condition?
81The VWA submitted the workplace incident was only one of a number of dislocations which had happened in a variety of contexts.
82The evidence, however, discloses that the January 2017 incident was different to previous dislocations. In Ms Jordan’s first affidavit, she states that “it felt different from my previous shoulder dislocation. I felt a sharp pain extending down the whole of my right arm and it went limp. The dislocation sat backwards whereas before it sat downwards.”[60]
[60]First affidavit sworn 30 April 2024 at paragraph [8]
83In her oral evidence, Ms Jordan confirmed it felt different to previous dislocations because, firstly, her shoulder went limp, whereas previously she still had retained some movement following the dislocation. I note the Emergency Department record from March 2013 specifically records there was no “altered sensation” in Ms Jordan’s right upper limb. Secondly, that her shoulder had dropped downwards where usually it had come out backwards.[61] Her evidence included that before January 2017, she had not ever experienced a dislocation at that angle;[62] and after the workplace incident, the shoulder was more prone to dislocation compared with its previous condition of chronic static subluxation.[63] I accept this evidence.
[61]See T38 and T39
[62]T40
[63] T41; DCB 110
84In expressing his opinion in relation to causation, Mr Chehata did not address:
(a) the mechanism of injury of 30 January 2017 in accordance with the evidence before me of a different type of pain, different features of the dislocation and its sequelae;
(b) the significance of the need for surgery in March 2017 based on radiological evidence of labral and capsular tearing; or
(c) the progression from managing at home and at work before the workplace incident, to total incapacity for unemployment from May 2022.
85His opinion was premised on a minor incident in 2017, with no particular significance in the progression of underlying joint instability. I reject this opinion because it is either inconsistent with or does not consider my findings of fact, and is against the weight of the evidence.
86I place particular weight on the opinion of orthopaedic surgeon, Dr Ghan. In the context of a request for approval of fusion surgery in 2022, the WorkCover agent supplied Dr Ghan with much of the historical medical material available to the Court in this application, and requested he provide an independent medico-legal opinion. Dr Ghan unequivocally confirmed the workplace incident was still a cause of Ms Jordan’s medical condition of multidirectional instability in July 2022, that her “current incapacity is still materially contributed by the incident on 30.1.2017”, and that Ms Jordan had no alternative but to proceed with right shoulder fusion.[64]
[64] PCB 257, at PCB 260 and 261
87On the evidence available to me, Ms Jordan has established the workplace incident is a cause of her current condition.
Did the workplace incident aggravate the underlying condition of Ms Jordan’s right shoulder?
88Much of the analysis in terms of causation is apposite in relation to the issue of assessing the extent of any permanent aggravation to the underlying shoulder condition.
89In my view, the evidence as a whole discloses a significant change in Ms Jordan’s condition consequent upon the workplace incident. That change includes a fused right shoulder, total incapacity for employment, severe restriction in movement and constant ongoing pain. While the right shoulder had previously required medical intervention to enlocate from time to time, Ms Jordan was able to manage in her home and work life. The comparison from the purposes of Petkovski v Galletti[65] is one of managing, to total incapacity for employment, with severe ongoing restriction and pain.
[65] Supra
90I find that Ms Jordan has discharged her burden in relation to establishing a serious permanent aggravation of her pre-existing right shoulder condition.
Is Ms Jordan’s disfigurement “serious”?
91The multiple surgeries have resulted in the very significant scarring depicted in various photographs of Ms Jordan taken before and after her injury.[66]
[66]Exhibits “N” and “O”
92The scarring extends from the lateral side of her upper arm to behind and over her humerus, and across her scapula. It is particularly obvious because it extends through an intricate decorative tattoo on Ms Jordan’s right shoulder, which she had done prior to the workplace incident. There is other obvious scarring on the front side of her right shoulder.
93The work-related injury and its treatment has also altered the appearance of Ms Jordan’s right shoulder.
94I accept that the scarring and disfigurement is permanent, and in an area which is apparent to others. It has occurred to a young person who takes obvious pride in their appearance, and I accept Ms Jordan’s evidence:
(a) she considers it obvious and ugly;
(b) her scarring is sunburnt easily, and gets very itchy when hot;
(c) her right arm appears to sit lower, and “bulks out in an in an unusual shape” on the outside of her right arm, sitting away from her body; and
(d) she is self-conscious when wearing singlets and dresses.
95I did not understand the VWA to contest the proposition that the disfigurement of Ms Jordan’s right shoulder area was “serious”. This aspect, like the balance of the application, was contested on the basis that there was no causal link between the dislocation on 30 January 2017 and the need for the surgeries which caused the scarring and disfigurement.
96I find her prominent scarring and disfigurement have consequences to her which are at least “very considerable” consequences of her right shoulder injury when judged by comparison with other cases in the range of possible disfigurement.
97In reaching my decision, I have had regard to a number of authorities in which serious injury applications involving scarring and disfigurement have been considered, including Ingram v Ingram & Anor,[67] Baker v Transport Accident Commission & D’Alberto[68] and Transport Accident Commission v Garcia,[69] as well as more recent County Court cases.
[67][1996] 2 VR 435
[68][1997] 1 VR 662
[69][2015] VSCA 225
Conclusion
98There is no doubt Ms Jordan suffered from a significant pre-existing condition of multidirectional right shoulder instability from the age of around fifteen years.
99The question of the contribution of the workplace incident to Ms Jordan’s current condition is complex but, on the evidence available to me, I am satisfied that it remains a cause.
100Ms Jordan’s symptoms and level of function in the critical period up to the date of the workplace incident are key factors in the determination of this application. She was working full-time, playing basketball and caring for her young son. Despite its chronic instability, Ms Jordan enjoyed a relatively high degree of function in the right shoulder.
101It is not in dispute that the workplace incident initially aggravated the right shoulder condition. An important consideration becomes the need for surgery: firstly, the labral repair and reconstruction and capsulorrhaphy in March 2017, being the first time her condition required surgical invention; a number of other procedures in the years that followed, and ultimately, arthrodesis in December 2022.
102Mr Chehata’s opinion, based on a single examination, after the fusion surgery, is an outlier amongst the orthopaedic and other specialist opinions.
103I also prefer the specialist opinions of the orthopaedic surgeons, in particular, over the most recent opinion of the treating general practitioner, Dr Fixler, who, without expressing sufficient reasons for doing so, changed his view as to causation after Ms Jordan underwent fusion surgery in 2022.
104There is a substantial body of medical evidence to support my finding that, had the workplace incident not occurred, Ms Jordan may not have had, and may not ever require, fusion surgery which, to my mind, is determinative of the application.
105I grant Ms Jordan leave to commence proceedings for common law damages for pain and suffering and loss of earnings.
106I will hear the parties on the form of final orders, and as to costs.
- - -
0
8
0